Cserne on Legislation & Legal Resistance to Empirical Knowledge

This short piece is an introduction to "Empirical Knowledge, Common Sense, and Legal Cognition" a special issue of Theory and Practice of Jurisprudence vol.1 issue 3 (2013).

It puts the contributions to the special issue in context by drawing attention to some current trends in lawmaking practices as well as academic research. On the one hand, reference to empirical research is increasingly frequent in both policymaking and legal reforms. On the other hand, the use of scientific empirical knowledge in legislation is neither systematic nor uncontroversial. It is suggested that law resists empirical knowledge for three main reasons: epistemic (related to how empirical knowledge is generated), institutional (how this knowledge is channelled and transferred into legislation or other legal procedures) and normative (related to law’s commitment to counterfactual models of human behaviour and non-instrumental goals).